DISH TV INDIA LTD. V/S AJAY DHAWAN - Consumer Court Case

Haryana

Panchkula

CC/78/2020

AJAY DHAWAN - Complainant(s)

Versus

DISH TV INDIA LTD. - Opp.Party(s)

UMESH NARAG & CHANDRA SEKHAR.

18 Nov 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

Consumer Complaint No	:	78 of 2020
Date of Institution	:	07.02.2020
Date of Decision	:	18.11.2024

Ajay Dhawan, aged 52 years s/o Sh. Ridha Dhawan, R/o H.No.777, Sector-16, Panchkula.

….Complainant

Versus

1. Dish TV India Ltd. FC-19, Sector-16-A, Film City Noida, Uttar Pradesh through its Executive Officer.

2. Axis Bank, SCO-10, Sector-10, Panchkula through its Branch Manager.

….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

Before: Sh. Satpal, President.

Dr. Sushma Garg, Member

Dr. Suman Singh, Member

For the Parties: Sh. Chander Sekhar, Advocate for the complainant.

Sh. Anil Kumar Chauhan, Advocate for OP No.1.

Sh. Ishant Khangwal, Advocate for OP No.2.

ORDER

(Satpal, President)

1. The brief facts, as per pleadings and documentary evidence placed on record by the parties, in the present complaint, are, that the Opposite party no.1(hereafter referred to as OP No.1) is a Direct to home Digital Entertainment Service Provider; the complainant is consumer/subscriber of DishTv(i.e.)OP No.1 vide VC No.01513533815 for viewing various Television Channels in his Television Set; the complainant is having his Saving Bank Account bearing no.1470101000- 24833 with Opposite party no.2(hereinafter referred to as No.2) and using the same for various financial transactions; the complainant had made the payment of Rs.3,520/- towards DTH Recharge of his DishTv VC No.0151353385 through Axis Bank(OP No.2) Mobile App on 05.09.2019; the transaction amount of Rs.3,520/- was debited from the complainant Bank Account bearing no.147010100024833 vide transaction id AXMOB/DTHR/LX65CJQ66335/147010100024833/050919 on 05.09.2019 but the complainant was still unable to view the channels, which he had subscribed and in this regard, an email was sent to the customer care division of Dishtv on 09.09.2019; in the meantime, to continue his subscription, complainant made another payment of Rs.100/- towards DTH recharge of his dishtv account on 09.09.2019, which was accepted and the dishtv worked for the period for which the amount was usable; the OP No.1 acknowledged the receipt of Rs.100/- for VC No.01513533815 towards DTH recharge made on 09.09.2019 and informed the complainant that due date for recharge was 11.09.2019 and switch off date was 14.09.2019. The OP No.1 further sought information from the complainant regarding transaction details of payment of Rs.3,520/-. The complainant sent email on 11.09.2019 along with screenshot of the bank statement, showing the recharge transaction entry of Rs.3,520/- and Rs.3,520/- on 05.09.2019 and 11.09.2019 and requested to sort-out the issue. The dishtv facility was not started and the complainant again sent an email to the OP No.1 on 05.10.2019 along with screen shots of payments made on 05.09.2019 and 11.09.2019 for an amount of Rs.3,520/- & Rs.3,520/-. No reply to the email dated 05.10.2019 was received; the OP No.1 sent an email on 09.10.2019 asking the complainant to get in touch with recharge merchant for confirmation of payment. Since the OP No.1 was not acknowledging both the transactions made by the complainant for Rs.3,520/- on 05.09.2019 and for Rs.3,520/- on 11.09.2019 towards DTH recharge, the complainant approached his bank i.e. OP No.2 Axis Bank to look into the matter and trace the payment made on 05.09.2019 & 11.09.2019. The OP No.2(bank) had confirmed that these transactions were complete and the said amount was transferred and credited in the Bank account of OP No.1, Dish TV. The complainant sent an email along with screen shots of the status as provided by the Axis Bank(OP No.2) to OP No.1 dishtv. It is stated that the OP No.1 has again denied the receipt of payment of Rs.3,520/- on 05.09.2019 and Rs.3,520/- on 11.09.2019 by an email dated 14.12.2019, whereas the bank OP No.2 stated that the payment has been credited to the account of merchant. It is stated that the complainant has made the payment to OP No.1 dishtv of Rs.3,520/- on 05.09.2019 and Rs.3,520/- on 11.09.2019 through OP No.2 Axis Bank and the same has been confirmed by OP No.2(bank) but the OP No.1 has denied the same, thus, the complainant has suffered due to deficiency in services on the part of OPs. The OPs have failed to redress the genuine grievances of the complainant. Due to the act and conduct of the OPs, the complainant has suffered mental agony, harassment and financial loss; hence, the present complaint.

2. Upon notice, the OP No.1 appeared through counsel and filed written statement by raising preliminary objections qua the present complaint that the complaint is not maintainable in the present form; the complainant has not come with clean hands and he has suppressed the true and material facts; the Commission has no jurisdiction to decide the present complaint and no cause of action has accrued in favour of the complainant and against the OP No.1. It is stated that the complainant has signed the subscription application form(SAF), according to which, in case of any dispute between the parties, the matter was liable to be raised before the arbitrator. It is submitted that the complainant had called the customer care of OP No.1 on 09.09.2019 to enquire about the status of recharge of Rs.3,520/- made by him on 05.09.2019 and in response thereto, the complainant was informed that no such amount was received by the OP No.1 and he was advised to avoid the use of the Axis Bank’s mobile application i.e. belonging to the OP No.2 bank, while recharging his dishTv account as OP No.1 did not have any direct access with Axis Bank for facility of recharge of DishTv. Similar advice was given to the complainant qua the alleged recharge of Rs.3,520/- made by him again on 11.09.2019 via Axis Bank’s mobile application. It is submitted that recharge amount of Rs.100/- was duly received by OP No.1 as made by the complainant on 09.09.2019. It is submitted that the alleged payment of Rs.3,520/- made by the complainant on 05.09.2019 and of Rs.3,520/- on 11.09.2019 via transaction ID No.AXMOB/DTHR/LX65CJQ66335/147010100024833/ 050919 & AXMOB/DTHR/10U2S4EZ4773/147010100024833/110919 respectively was not received/credited into the account of OP No.1.

On merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the complaint of the complainant is liable to be dismissed.

Upon notice, the OP No.2 appeared through counsel and filed written statement by raising preliminary objections qua the present complaint is not maintainable in the present form; the complainant has no locus standi to file the present complaint; the Commission has no jurisdiction to entertain the present complaint; the complainant has not come with clean hands and he has suppressed the true and material facts; the complainant is estopped from filing the present complaint and no cause of action has accrued in favour of the complainant and against the OP No.2. It is stated that the complainant on 05.09.2019 had made a transaction AXMOB/DTHR/LX65CJQ66335/147010100024833/050919 of Rs.3520/- and the same was credited into the account of OP No.1 and again on 11.09.2019, he had made a transaction no.AXMOB/DTHR/ 10U2S 4EZ4-773/147010100024833/110919 of Rs.3,520/- and the same was credited into the account of the OP No.1. Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OP No.2 and as such, the complaint is liable to be dismissed.

3. The complainant did not submit its evidence in shape of affidavit along with documents etc. despite availing several opportunities; accordingly, its evidence was closed by the Commission on 23.05.2022. On the other hand, the learned counsel for OP No.1 has tendered affidavit as Annexure R-1/A along with documents as Annexure R-1/1 and closed the evidence. The learned counsel for OP No.2 has tendered affidavit as Annexure R-2/A along with documents as Annexure R-2/1 and closed the evidence.

During arguments, the learned counsel for the complainant has prayed for assigning specific marks to the account statement and emails etc. which were already appended with the complainant. Since several emails etc. were already appended with the complaint, the same are assigned as Mark ‘A’ to ‘J’ for proper adjudication of the present complaint.

4. We have heard the learned counsels for the complainant as well as OP No.1 & OP No.2 and gone through the record available on file, minutely and carefully.

5. The learned counsel for the complainant, during arguments, reiterated the averments as made in the complaint as also in the affidavit(Annexure C-A) of the complainant and contended that the complainant had made the payment of Rs.3,520/- on 05.09.2019 vide transaction ID No.AXMOB/DTHR/LX65CJQ66335/147010100024833/05- 0919 & again had made the payment of Rs.3,520/- on 11.09.2019 vide transaction ID No. AXMOB/DTHR/10U2S4EZ4773/147010100024833/ 110919 respectively to OP No.1 through the OP No.2(bank) for recharging of his dish TV account but the facility qua recharging was not provided by the OP No.1. It was argued that the denial by the OP No.1 qua the receipt of amount of Rs.3,520/- on 05.09.2019 and Rs.3,520/- on 11.09.2019 (total Rs.7,040/-) from the complainant through OP No.2 was not valid and justified. Lastly, it was argued that an amount of Rs.7,040/- i.e. Rs.3520+Rs.3520/- was debited from the account of the complainant on 05.09.2019 and 11.09.2019 respectively for recharging of the Dishtv account of the complainant but the Dish TV facility was not made available to the complainant and thus, the complaint is liable to be accepted by granting the relief as claimed for in the complaint.

6. On the other hand, the learned counsel on behalf of OP No.1, during arguments, reiterated the averments as made in the written statement as also in the affidavit(Annexure R-1/A) and contended that the complaint is liable to be dismissed in view of the terms and conditions contained in the subscription application form (SAF), which was duly signed by the complainant, wherein it was stipulated that any dispute, if any, between the parties, was liable to be referred to arbitrator.

7. The aforesaid objection taken by the learned counsel for the OP qua referring the matter to the arbitrator is not tenable because Section 100 of the Consumer Protection Act, 2019 provides an additional remedy to a consumer in addition to any other remedy available to an aggrieved consumer. In this regard, we may safely place reliance upon the law laid down by the Hon’ble Apex Court in the case titled as Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M.Lalitha (Dead) Through Lrs and others, (2004) 1 SCC 305, wherein, it has been held that remedy under Consumer Protection Act is in addition to and not in derogation of the remedies available to aggrieved person. The Hon’ble Apex Court in para no.11 of the said judgment observed as under:-

“As per Section 3 of the Act, as already stated above, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional /extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar”.

We may further place reliance upon the law laid down by the Hon’ble Apex Court in the case title as Emmar MGR Land Limited Vs. Aftab Singh Review Petition(c ) Nos.2629-2630 of 2018 in Civil Appeal Nos.23512-23513 of 2017 decided on 10.12.2018 (SC) wherein it has been held that the arbitration clause cannot oust the jurisdiction of consumer court.

8. On merits, the learned counsel contended that payment of Rs.7,040/- i.e. Rs.3,520/- on 05.09.2019 and Rs.3,520/- on 11.09.2019 from the complainant through the OP No.2(bank) was not received and thus, the complaint is liable to be dismissed being frivolous, baseless and meritless.

9. The learned counsel on behalf of OP No.2, during arguments, has reiterated the averments as made in the written statement as also in the affidavit(Annexure R-2/A) and contended that the payment of Rs.7,040/- i.e. Rs.3,520/- on 05.09.2019 and Rs. 3,520/- on 11.09.2019 was debited from the account of the complainant and the same was credited in the account of beneficiary but the debited amount was not yet credited in the Dist TV account of the complainant and thus, there was no deficiency on the part of OP No.2; hence, it was prayed that the complaint is liable to be dismissed qua OP No.2.

10. As per rival submissions made by the learned counsel for the parties, the question that arises for consideration, is, whether the total amount of Rs.7040/- i.e. an amount of Rs.3,520/- on 05.09.2019 and another amount of Rs.3,520/- on 11.09.2019, as was debited from the account no.14700335 of the complainant, was transferred in the account of OP No.1 i.e. Dish TV India Private Limited.

11. We have perused the account statement i.e. Annexure R-2/1 of the complainant and find that an amount of Rs.3,520/- and another amount of Rs.3,520/- i.e. total amount of Rs.7,040/- was debited from the account no.147003335 of the complainant on 05.09.2019 and 11.09.2019 vide transaction ID No.AXMOB/DTHR/LX65CJQ66335/-147 010100024833/050919 and transaction ID No. AXMOB/DTHR/10U2S- 4EZ4773/147010100024833/110919 respectively. The aforesaid transactions were made by the complainant through OP No.2-bank, who has transferred the same in favour of the OP No.1. Sh. Manish Kumar, Branch Head of OP No.2(bank) has categorically deposed in para no.4 of his affidavit(Annexure R-2/A) that an amount of Rs.3,520/- debited on 05.09.2019 and Rs.3,520/-debited on 11.09.2019 from the account of the complainant, was credited in the account of beneficiary but the same was not credited in the account of the complainant. Further, as per email conversation between the complainant and the official of OP No.1, it is evident that the transactions made by the complainant through OP No.2-bank were successful. In this regard, we have perused the copy of emails dated 27.12.2019, Mark ‘B’ & Mark ‘C’, which were sent by the complainant to the OP No.1 alongwith the transactions details as received by him from the OP No.2(bank). The copy of transaction details as appended with the said email dated 27.12.2019 has described the transactions as “successful”. Though, the OP No.2 vide email dated 27.12.2019 through its customer care i.e.

12. In relief, the complainant has claimed the refund of Rs.7,040/- with interest. Further, a compensation of Rs.50,000/- has been claimed on account of mental agony, harassment and litigation charges.

13. As a sequel to above discussion, we partly allow the present complaint with the following directions to the OP No.1:-